(concurring in part and dissenting in part).
I would affirm the order of the district court in its entirety.*
In a school district in which freedom of choice has patently failed to overcome past state policy of segregation and to achieve a unitary system, the district court found the reasons for failure. They included resort to a desegregation plan based on geographical zoning with a free transfer provision, rather than a more positive method of achieving the constitutional objective, the failure to integrate faculties, the existence of segregated racial patterns partially as a result of federal, state and local governmental action and the use of a neighborhood concept for the location of schools superimposed upon a segregated residential pattern. Correctly the majority accepts these findings under established principles of appellate review. To illustrate how government-encouraged residential segregation, coupled with the discriminatory location and design of schools, resulted in a dual system, the majority demonstrates that in this locality busing has been employed as a tool to perpetuate segregated schools.
In complete compliance with Carter v. West Feliciana School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970); Alexander v. Holmes County Bd. of Ed., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Green v. School Bd. of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and Monroe v. Bd. of Com’rs, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968), the majority concludes that the existing high school and junior high school systems must be dismantled and that the constitutional mandate can be met by the use of geographical assignment, including satellite districts and busing.
The majority thus holds that the Constitution requires that this dual system be dismantled. It indicates its recognition of the need to overcome the discriminatory educational effect of such factors as residential segregation. It also approves the use of zones, satellite districts and resultant busing for the achievement of a unitary system at the high school and junior high school levels. Nevertheless, the majority disapproves a similar plan for the desegregation of the elementary schools on the ground that the busing involved is too onerous. I believe that this ground is insubstantial and untenable.
At the outset, it is well to remember the seminal declaration in Brown v. Board of Education (Brown II), 349 U.S. 294, 300, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), that in cases of this nature trial courts are to “be guided by equitable principles” in “fashioning and effectuating decrees.” Since Brown II the course of decision has not departed from the underlying premise that this is an *157equitable proceeding, and that the district court is invested with broad discretion to frame a remedy for the wrongful acts which the majority agrees have been committed. In Green v. School Board of New Kent County, 391 U.S. at 438, 88 S.Ct. at 1694, 20 L.Ed.2d 716, the Supreme Court held that the district courts not only have the “power” but the “duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past, as well as bar like discrimination in the future.” District courts were directed to “retain jurisdiction until it is clear that disestablishment has been achieved.” Raney v. Board of Education, 391 U.S. 443, 449, 88 S.Ct. 1697, 1700, 20 L.Ed. 2d 727 (1968). Where it is necessary district courts may even require local authorities “to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system.” Griffin v. County School Board, 377 U.S. 218, 233, 84 S.Ct. 1226, 1234, 12 L.Ed.2d 256 (1964). Thus, the Supreme Court has made it abundantly clear that the district courts have the power, and the duty as well, to fashion equitable remedies designed to extirpate racial segregation in the public schools. And in fashioning equitable relief, the decree of a district court must be sustained unless it constitutes a clear abuse of discretion. United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).
Busing is among the panoply of devices which a court of equity may employ in fashioning an equitable remedy in a case of this type. The district court’s order required that “transportation be offered on a uniform non-racial basis to all children whose attendance in any school is necessary to bring about reduction of segregation, and who live farther from the school to which they are assigned than the Board determines to be walking distance.” It found as a fact, and I accept its finding, that “there is no way” to desegregate the Charlotte schools in the heart of the black community without providing such transportation.
The district court’s order is neither a substantial advance nor extension of present policy, nor on this record does it constitute an abuse of discretion. This school system, like many others, is now actively engaged in the business of transporting students to school. Indeed, busing is a widespread practice in the United States. U. S. Commission on Civil Rights, Racial Isolation in the Public Schools 180 (1967). Between 1954 and 1967 the number of pupils using school transportation has increased from 9,-509,699 to 17,271,718. National Education Association, National Commission on Safety Education, 1967-1968 Statistics on Pupil Transportation 3.
Given its widespread adoption in American education, it is not surprising that busing has been held an acceptable tool for dismantling a dual school system. In United States v. Jefferson County Board of Education, 380 F.2d 385, 392 (5 Cir.) (en banc), cert. den. sub nom. Caddo Parish School Bd. v. United States, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967), the court ordered that bus service which was “generally provided” must be routed so as to transport every student “to the school to which he is assigned” provided that the school “is sufficiently distant from his home to make him eligible for transportation under generally applicable transportation rules.” Similarly, in United States v. School Dist. 151, 286 F.Supp. 786, 799 (N.D.Ill.1968), aff’d., 404 F.2d 1125 (7 Cir. 1968), the court said that remedying the effects of past discrimination required giving consideration to “racial factors” in such matters as “assigning students” and providing transportation of pupils. In addition, the Eighth Circuit in Kemp v. Beasley, 423 F.2d 851 (8 Cir. 1970), recognized that busing is “one possible tool in the implementation of unitary schools.” And, finally, Griffin v. County School Board, supra, makes it clear that the added cost of necessary transportation does not render a plan objectionable.
*158I turn, then, to the extent and effect of busing of elementary school students as ordered by the district court.
Presently, 23,600 students — 21% of the total school population — are bused, excluding some 5,000 pupils who travel to and from school by public transportation. The school board operates 280 buses. The average cost of busing students is $39.92 per student, of which one-half is borne by the state and one-half by the board. Thus, the average annual cost to the board is about $20.00 per student. The total annual cost to the board for busing is approximately $500,000.00 out of a total operating budget of $51,000,000.00. The cost of busing is thus less than 1% of the total operating budget and an even smaller percentage of the $57,700,000.00 which this school district expends on the aggregate of operations, capital outlay and debt service and this cost also represents less than 2% of the local funds which together with state and federal money constitute the revenue available annually to the school board.
The total number of elementary school pupils presently bused does not appear, but under the district court’s order an additional 9,300 elementary school pupils would be bused. The additional operating cost of busing them would not exceed $186,000.00 per year. They would require not more than 90 additional buses, and the buses would require an additional capital outlay of $486,000.00. The increased operating cost of the additional elementary school pupils required to be bused amounts to less than 1% of the board’s school budget, and the one-time capital outlays for additional buses amounts to less than 1% of the board’s total budget. The combined operational and capital cost represents less than 1.2% of the board’s total budget. I am, therefore, unable to see how the majority could consider the additional cost unbearable.
Perhaps more importantly, the tender years of elementary school students require a consideration of the impact of the district court’s order on the average student. While this board transports 21% of the total school population, it is providing transportation to a far lower percentage of pupils than the average North Carolina school board. In North Carolina 54.9% of the average daily attendance in the public schools was transported by bus during the 1968-1969 school year.
The average distance traveled by elementary school pupils presently bused does not appear, but the district court found overall with respect to the children required to be bused by its order that they “will not as a group travel as far, nor will they experience more inconvenience than the more than 28,000 children who are already being transported * * While the district court did not make separate findings with regard to the average length of travel for the additional elementary school pupils required to be bused, it did find that the average one-way bus trip in the system today is over 15 miles in length and takes nearly an hour and a quarter. In contrast, the court found that under its plan the average one-way trip for elementary school students would be less than 7 miles and would require not over thirty-five minutes.
When I consider that busing has been widely used in this system to perpetuate segregation, that some busing was proposed even under the unacceptable board plans, that the cost of additional busing to the system as required by the court’s order, both in absolute terms and in relation to its total expenditures is so minimal, and that the impact on the elementary school pupils is so slight, I discern no basis for concluding that the district court abused its discretion with respect to the elementary school.
Two other aspects of the majority’s opinion require my comment.
First, the majority attempts to answer the query of the Chief Justice in his separate opinion in Northcross v. Board of Ed. of Memphis, 397 U.S. 232, 90 S.Ct. 891, 25 L.Ed.2d 246 (1970), as to whether “any particular racial balance must be achieved in the schools” by holding *159“that not every school in a unitary school system need be integrated * * To me, the holding is premature and unwise. There is not in this case either the intractable problem of a vast urban ghetto in a large city or any substantial basis on which it may be said that the cost or the impact on the system or on the pupils of dismantling the dual system is insupportable.
The district court wisely attempted to remedy the present dual system by requiring that pupil assignment be based “as nearly as practicable” on the racial composition of the school system, 71% white and 29% black. The plan ordered fell short of complete realization of this remedial goal. While individual schools will vary in racial composition from 3% to 41% black, most schools will be clustered around the entire system’s overall racial ratio. It would seem to follow from United States v. Montgomery County Board of Education, 395 U.S. 225, 232, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1968), that the district court’s utilization of racial ratios to dismantle this dual system and remedy the effects of segregation was at least well within the range of its discretion. There the Supreme Court approved as a requirement of faculty integration that “in each school the ratio of white to Negro faculty members is substantially the same as it is throughout the system.” It did so recognizing what it had previously said in New Kent County, 391 U.S. at 439, 88 S.Ct. at 1695, 20 L.Ed.2d 716, “[t]here is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and should be developed on a case-by-ease the establishment of a unitary system, the options available in each instance.” If in a proper case strict application of a ratio is an approved device to achieve faculty integration, I know of no reason why the same should not be true to achieve pupil integration, especially where, as here, some wide deviations from the overall ratio have been permitted to accommodate circumstances with respect to particular schools.
In addition to Montgomery, the same conclusion can be deduced from the mandate of West 'Feliciana and Holmes County to dismantle immediately a dual system. Schools cease to be black or white when each reflects the overall pupil racial balance of the entire system. What imbalances may be justified after a unitary system has once been established, and what departures from an overall accommodate special circumstances in pupil racial balance may be permitted to basis and the facts of record which each case presents.
The other aspect of the majority’s opinion which troubles me greatly is its establishment of the test of reasonableness. My objections to this test do not spring from any desire to impose unreasonable, irrational or onerous solutions on school systems; I, too, seek “reasonable” means with which to achieve the constitutionally required objective of a unitary system.
My objections are two-fold.
First, this is an inappropriate case in which to establish the test. On this record it cannot be said that the board acted reasonably or that there is any viable solution to the dismantling of the dual system other than the one fashioned by the district court. Neither the board nor HEW has suggested one. So that, again, I think the majority is premature in its pronouncement and I would find no occasion to discuss reasonableness when there is no choice of remedies.
Second, the majority sets forth no standards by which to judge reasonableness or unreasonableness. The majority approves the district court’s plan as to high schools and junior high schools, yet disapproves as to elementary schools. The only differences are increased busing with attendant increased cost, time and distance. The majority subjectively concludes that these costs are too great to permit the enforcement of the constitutional right to a unitary system. I would find them neither prohibitive nor *160relatively disproportionate. But, with the absence of standards, how are the school boards or courts to know what plans are reasonable? The conscientious board cannot determine when it is in compliance. The dilatory board receives an open invitation to further litigation and delay.
Finally, I call attention to the fact that “reasonableness” has more than faint resemblance to the good faith test of Brown II. The 13 years between Brown II and New Kent County amply demonstrate that this test did not work. Ultimately it was required to be rejected and to have substituted for it the absolute of “now” and “at once.” The majority ignores this lesson of history. If a constitutional right exists, it should be enforced. On this record the constitutional rights of elementary school pupils should be enforced in the manner prescribed by the district court, because it is clear that the district court did not abuse its discretion.
Judge Sobeloff authorizes me to say that he joins in these views.
JUDGMENT
This cause came on to be heard’on the record from the United States District Court for the Western District of North Carolina, and was argued by counsel.
On consideration whereof, it is ordered and adjudged that the judgment of the District Court appealed from, in this cause, be, and the same is hereby, vacated; and the case is remanded to the United States District Court for the Western District of North Carolina, at Charlotte, for further proceedings.
Judge Bryan joins Haynsworth, C. J., and Boreman, J., in voting to vacate the judgment of the District Court, and to remand the case in accordance with the opinion written by Butzner, J. He does so for the sake of creating a clear majority for the decision to remand. It is his hope that upon reexamination the District Court will find it unnecessary to contravene the principle stated in Judge Bryan’s dissent herein, to which he still adheres. Screws v. United States, 325 U.S. 91, 135, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).
Certainly, if the district court’s order with respect to high schools and junior high schools is affirmed, the district court should not be invited to reconsider its order with respect to them. The jurisdiction of the district court is continuing and it may always modify its previous orders with respect to any school upon application and for good cause shown.